Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?

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The dispute in the main proceedings

Pebros Servizi sued before an Italian national court several companies and, among them, we could find Aston Martin. However, the latter was duly noticed to present itself in court allowing it to participate in those proceedings, what did not happen. Aston Martin was condemned in absentia to pay to Pebros Servizi the total amount of 18.000,00€ “together with interest at the statutory rate running from the publication of the judgment until payment in full and the legal costs, comprising EUR 835 for sundry expenses and EUR 9 500 for professional fees, plus VAT and other incidental social security expenses under national law”[i].

Aston Martin did not present any appeal and that judgement became final.

On October 2014, Pebros Servizi asked that Italian court to certify that decision as a European enforcement order. However, that court expressed its doubts concerning using Regulation 805/2004 enforcement order in such a case. Those doubts derived from the fact that, in Italian law, a judgment made in default of the defendant does not mean the latter recognises the facts brought against him in the litigation. So, national court had doubts if “a judgment in default [might] be regarded as a judgment for an uncontested claim”[ii]. In this sense, national court called upon two doctrinal positions: 1) One, based on national law, where a default procedure does not amount for an uncontested claim; 2) Another, where “that concept of ‘absence of contestation’ is defined autonomously by EU law and covers also a failure to appear during proceedings”[iii].

The admissibility of the request for a preliminary ruling

Concerning this topic, Italian government understands national court is not acting as a “court or tribunal” in the sense of article 267.º of the TFEU when it is called to certify a decision as an enforcement order under Regulation 805/2004. In fact, Italian Government states that it “does not fulfil the criteria allowing that procedure to be classified as the exercise of judicial activity, since that procedure should be treated like a purely administrative procedure or non-contentious proceedings”[iv]. ECJ does not comply with that interpretation because, as stated in case law Roda Golf [v], all courts are able to refer questions to ECJ if a case is pending before them. Otherwise, that absolute capacity to refer – stated in ECJ’s jurisprudence since case law Rheinmühlen-Düsseldorf[vi] – would be seriously compromised. In fact, concerning European enforcement order under Regulation 805/2004, ECJ already stated the need to a court (in the proper legal and constitutional sense of the word) to intervene in order to evaluate of conditions laid down on Regulation 805/2004 are or not met in that matter. As stated in case law Imtech Marine Belgium[vii], that intervention is needed in order to ascertain the principle of an effective judicial protection, namely those dimensions concerning defendant rights’ fulfilment. On the other hand, ECJ also explains a literal argument to understand Regulation demands for a true court to intervene: under its article 6.º, the court responsible to make the decision’s certification as a European enforcement order has to verify if all those requirements are met. Specifically, it has to review “the lawfulness of that earlier judicial procedure and compliance with the rules on jurisdiction, in particular to ensure the enforceability of the decision taken and to assess the nature of the claim”[viii].

In this sense, the great novelty of this case law derives when ECJ peremptorily states that “the procedure for the certification of a court decision as a European Enforcement Order appears, functionally, not as a procedure which is distinct from the earlier judicial procedure, but as the final phase of that procedure, necessary in order to ensure that it is fully effective, by allowing the creditor to proceed with the recovery of his debt”[ix]. ECJ shows that the European enforcement order procedure works as the closing path for the previous procedure in order to fully allow the plaintiff to better recover its credit and, therefore, completely allow EU economic recovery by protecting Medium and Small Enterprises and individuals[x].

The admissibility of the question referred

The Italian Government also questioned the admissibility of the referred question because, as Regulation 805/2004 is not mandatorily applicable, the question ought to be irrelevant. Moreover, the application of Regulation 1215/2012 would solve the problem, which demonstrates even more how the referred question could be avoided.

As settled by the ECJ, in several of its case law[xi], there is a preliminary ruling’s presumption of relevance since it is this national court that is able to assess the need of a preliminary ruling and how it is important to solve the dispute it has to deal with. Preliminary rulings can only be refused, as settled in our case law, “only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it”[xii]. In this particular case, an EU law mechanism was called upon – the European enforcement order – so the referred question is admissible.

The question referred by the Italian court

The Italian court wanted to understand which interpretation should be made of the expression “uncontested claim”, referred on Regulation 805/2004, with particular repercussion to disputes such as the one posed before it – where the defendant, during the declaratory proceedings, was judged in absentia and Italian legislation did not consider that procedural behavior as being able to defined as “uncontested”.

ECJ started to explain that none of those undetermined concepts found in EU law can be interpreted by using national referral ones because that would compromise equality between all citizens. Furthermore, Regulation 805/2004 does not defines that expression by remitting its interpretation to national legislation – and, particularly in judicial cooperation in civil and commercial matters, it is usual to do so when it is advisable or the European legislator thought it would provide a better solution under the principle of Member-States’ procedural autonomy. Therefore, by looking at Regulation 805/2004 it is clear that the expression “uncontested claims” cannot be interpreted by using Italian law as a referral since that legal instrument does not remits to it.

On the other hand, Regulation’s whereas 5 states that “The concept of ‘uncontested claims’ should cover all situations in which a creditor, given the verified absence of any dispute by the debtor as to the nature or extent of a pecuniary claim, has obtained either a court decision against that debtor or an enforceable document that requires the debtor’s express consent, be it a court settlement or an authentic instrument”. To this we have to add what whereas 6 states: “The absence of objections from the debtor […] can take the shape of default of appearance at a court hearing or of failure to comply with an invitation by the court to give written notice of an intention to defend the case” (our emphasis). If any doubts would remain, article 3.º, n.º 1, b) has the ability to set them aside when it states that “A claim shall be regarded as uncontested if: b) the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings”.

Taking this into consideration, ECJ states that it is irrelevant if national Italian law does not amount a judgment in default as an uncontested claim since Regulation 805/2004, when it refers, in article 3.º, n.º 1, b), national legislation of the Member-State of origin, it “does not relate to the legal consequences of a failure by the debtor to attend the proceedings” since “those consequences [are] the subject of an autonomous classification under that regulation, but concerns exclusively the detailed procedural rules in accordance with which the debtor may effectively contest the claim”. Therefore, ECJ understands national procedural autonomy problem not relevant to the particular context of this litigation.

In fact, this must be underlined bearing in mind effective judicial protection principle, since Regulation sets a complete set of mechanisms to understand what is an uncontested claim because EU legislator was aware of the need to protect defendant rights, especially those connected to his defense. Those are particularly safe when Regulation remits to national solutions concerning how the defendant’s opposition should be made, which deadline would be set to him, etc. And that is completely secured by article 3.º, n.º 1, b), when it states “in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings”.

Therefore, Regulation terms must be assessed autonomously, and national procedural solutions can only be called upon when expressively those EU legal instruments (such as this Regulation 805/2004) remit to them.

[i] See Case Law Pebros Servizi, process number C-511/14, of 16th June 2016, paragraph 16.

[x] For further development, see Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, EU Citizenship Report 2013 / EU citizens: your rights, your future, COM(2013) 269 final, Brussels, 8th May 2013.

[xi] See, for instance, case law Meerts, process number C-116/08, of 22nd October 2009 case law Elchinov, process number C-173/09, of 5th October 2010.

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